Shri Kharibam Ibomcha Singh v. The Commissioner (Works), Government of Manipur

Order

: :: :: Mr. RK Umakanta, GA Mr. HS Paonam, Sr. Adv.

22.11.2022. JUDGMENT AND ORDER (ORAL) This petition has been filed by the petitioners to condone the delay of 417 days in filing the L.A. Appeal against the judgment and order dated 25.2.2021 passed in O.S. (LA) No.5 of 2009/1 of 2017 on the file of the learned District Judge, Imphal East, Manipur.

2. The case of the petitioner is that upon receipt of a communication from the conducting counsel of the respondent State in respect of the order passed by the learned District Judge, MC(L.A. Appeal) No. 4 of 2022 P a g e | 3 Imphal East in 20 numbers of Original Suit (LA) cases, including OS (LA) No.5 of 2009, the Additional Chief Secretary (Works), Government of Manipur put up the said notice to the Joint Secretary (Works), who in turn sent the same to the OSD Legal. On 25.3.2021, the Chief Engineer, PWD had requested the Executive Engineer, NH-II, PWD, Manipur to obtain certified copies of 20 nos. of judgment of the land acquisition cases. In this regard, the Chief Engineer, PWD was requested to obtain certified copies of judgments vide letters dated 17.3.2021,

25.3.2021, 17.1.2022 and 21.1.2022 respectively. On

29.1.2022, the Law Department was requested to engage

Government Advocate (High Court) for filing appeal against the order dated 25.2.2021 passed in OS (LA) No.5 of 2009.

3. It is alleged that after getting approval from the Finance Department for the expenses to be incurred for obtaining copies and after filing applications and upon receipt of the certified copy of the judgment, the Law Department was requested on 11.4.2022 to engage the Government Advocate (High Court) and by the letter dated 19.4.2022, the Law and Legislative Affairs Department directed the Government Advocate (High Court) to file an appeal against the judgment and MC(L.A. Appeal) No. 4 of 2022 P a g e | 4 order dated 25.2.2021 passed in OS (LA) No.5 of 2009/1 of 2017. After collecting the papers from the conducting counsel and after preparing the draft grounds of appeal and delay condonation petition, the same were sent to the Deputy Secretary (Works) for swearing before the Oath Commissioner. On 6.6.2022, the OSD/Legal (Works) discussed the matter for filing appeal before the High Court and the appeal was ready for filing on 21.6.2022. However, due to summer vacation of the High Court from

20.6.2022 to 2.7.2022 and the next day being Sunday, the appeal was presented on 4.7.2022 along with application condonation of delay of 417 days which inclusive of the period of exclusive given by the Hon’ble Supreme Court for the purpose of limitation. Hence, the petitioner has filed the petitioner for condonation of delay of 417 days in filing the appeal.

4. The respondent filed affidavit-in-opposition stating that the existence of the judgment dated 25.2.2021 passed in OS (LA) No.5 of 2009/1 of 2017 by the learned District Judge, Imphal East was communicated by the conducting counsel representing the appellant State on 8.3.2021 itself and therefore, the statement of the petitioners that the delay of 417 days in filing the appeal is unintentional as no sufficient reason supporting the MC(L.A. Appeal) No. 4 of 2022 P a g e | 5 statement is shown. It is stated that the delay was due to the utter negligence and inaction on the part of the petitioners and their casual approach on the issue. The petitioners have failed to explain each day delay and also sufficient cause giving reasonable and acceptable explanation and each day delay in preferring the appeal has also not been proved. Therefore, the delay in filing the appeal should not be condoned for want of sufficient cause.

5. Mr. RK Umakanta, learned Government Advocate appearing for the petitioners submitted that the delay which has been caused for filing the appeal against the judgment and order dated 25.2.2021 passed by the learned District Judge, Imphal East in OS (LA) No.5 of 2009/1 of 2017 is bonafide and not intentional, as the Government is machinery impersonal and nobody is looking after the interest of the Government properly though some of the employees are entrusted with specific responsibilities.

6. The learned Government Advocate further submitted that a joint trial of 19 cases along with OS (LA) No.5 of 2009/1 of 2017 was held and aggrieved by the judgment dated

25.2.2021 of the learned District Judge, the claimants have filed MC(L.A. Appeal) No. 4 of 2022 P a g e | 6 F.A.Nos.1 to 10 of 2021 and the same are pending before this Court. He would submit that the delay in filing the appeal is not intentional and most of the days delay is during Covid period.

7. The learned Government Advocate urged that when the appeal against the same judgment is already pending, more pragmatic view is to be taken in adjudicating application for condonation of delay in filing the appeal by another party. Further, this Court should take a lenient view as the State represents collective cause of the community and if the appeal brought by the State is lost on the ground of delay, no person is individually affected, but the sufferer is the State and public interest. Thus, a prayer is made to condone the delay of 417 days in filing the appeal.

8. Per contra, the learned counsel for the respondent submitted that no tenable and plausible explanation has been given by the petitioners for the delay of417 days that has been caused in filing the appeal and that each day delay has not been properly explained. Further, sufficient cause was not shown for condonation of the huge delay of 417 days. MC(L.A. Appeal) No. 4 of 2022 P a g e | 7

9. The learned counsel further submitted that only due to utter negligence and inaction on the part of the petitioners and their casual approach on the issue, the delay has occurred and a perusal of the explanation made by the petitioners would clearly reveal that the delay caused in filing the appeal is due to sheer inaction on the part of the petitioners and the delay was intentional. Thus, a prayer is made to reject the petition.

10. This Court considered the rival submissions and also perused the materials available on record.

11. The petitioners/State filed an appeal against the judgment and order dated 25.2.2021 passed in OS (LA) Case No.5 of 2009/1 of 2017 with an application to condone the delay of 417 days. The reason for the delay has been explained by the petitioners in their affidavit filed in support of the petition. On a reading of the explanation for the delay given by the petitioners in their affidavit though shocking, the delay is not intentional for the reason that most of the days are during Covid period and during the Covid period, the Government offices in the State of Manipur functioned with less number of staff. MC(L.A. Appeal) No. 4 of 2022 P a g e | 8

12. It appears that the communication of the conducting counsel about the passing of the judgment to the official concerned and obtaining the certified copy of the judgment and decree in OS (LA) No.5 of 2009 are started from 8.3.2021 to

1.4.2022 and finally, the petitioners obtained certified copy on

11.4.2022 and upon preparation of the draft appeal grounds with delay condonation petition and sending the same to the Department for swearing before the Oath Commissioner and after getting signature, the appeal was filed on 4.7.2022.

13. On a perusal of the affidavit, the petitioners have also given the break up for the delay and most of the days i.e. 369 days delay are during Covid period. In this regard, it is pertinent to note that the Hon’ble Supreme Court by the order dated 10.1.2022 in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition No.3 of 2020 [In Re: Cognizance for Extension of Limitation] excluded the period from 15.3.3020 till 28.2.2022 in computing the period for delay. Paragraph 5 of the order dated

10.1.2022 would be relevant and the same is quoted hereunder: “5. Taking into consideration the arguments advanced by learned counsel and the impact MC(L.A. Appeal) No. 4 of 2022 P a g e | 9 of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No.21 of 2022 with the following directions: i. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. ii. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. iii. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from MC(L.A. Appeal) No. 4 of 2022 P a g e | 10

01.03.2022 is greater than 90 days, that longer period shall apply. iv. It is further clarified that the period from

15.03.2020 till 28.02.2022 shall also stand excluded in computing periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

14. Pursuant to the decision of the Hon’ble Supreme Court, if we calculate the exclusion period from 25.02.2021 to

28.02.2022, it comes 369 days. From 1.3.2022 to till the date of filing i.e. 4.7.2022, if we calculate, it comes 125 days. Thus, the delay to be condoned is 125 days.

15. Though the learned counsel for the respondent argued that the application to condone the delay would certainly show utter negligence and inaction on the part of the petitioners MC(L.A. Appeal) No. 4 of 2022 P a g e | 11 and their casual approach on the issue, nothing has been produced by the respondent to show that the petitioners have deliberately delayed in preferring the appeal.

16. According learned counsel respondent, no sufficient cause/reason was shown. The said argument of the learned counsel for the respondent cannot be countenanced for the reason that the petitioners have given reason for the delay in their affidavit filed in support of the petition.

17. Under Section 5 of the Limitation Act, it is only sufficiency of the cause that matters and not the length and breadth of the delay. While dealing with Section 5 application, the question of diligence or bonafides are to be considered.

18. It is settled law that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the MC(L.A. Appeal) No. 4 of 2022 P a g e | 12 superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse.

19. No hard and fast rule can be laid down in the matter of condonation of delay and the Court should adopt a pragmatic approach and the Court should exercise their discretion on the facts of each case keeping in mind that in construing the expression “sufficient cause” the principle of advancing substantial justice is of prime importance and the expression “sufficient cause” should receive a liberal construction.

20. In Maniben Devaraj Shah v. Municipal Corporation of Brihan Mumbai, reported in(2012) 5 SCC 157, the Hon'ble Supreme Court held thus: “24. What colour the expression” sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly MC(L.A. Appeal) No. 4 of 2022 P a g e | 13 negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.”

21. In Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy & others, reported in 2013 (5) CTC 547 (SC), the Hon'ble Supreme Court held that there should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an Application for condonation of delay. The Hon'ble Supreme Court referred to its earlier judgments in G.Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore, 1988 (2) SCC 142; O.P. Kathpallia v. Lakhmir Singh (dead) and others, 1984 (4) SCC 66; State of Nagaland v. Lipok AO and others, 2005 (3) SCC 752; New India Insurance Co. Ltd. v. Shanti Misra, 1975 (2) SCC 840; Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, 2010 (5) SCC 459, which declared that the Court should be liberal in dealing with condone delay petition. In paragraphs 15 and 16, the Hon'ble Supreme Court held thus: "15. From the aforesaid authorities the principles that can broadly be culled out are: MC(L.A. Appeal) No. 4 of 2022 P a g e | 14 (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice MC(L.A. Appeal) No. 4 of 2022 P a g e | 15 and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to capsule conception reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are MC(L.A. Appeal) No. 4 of 2022 P a g e | 16 fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

16. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: (a) An Application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion the Courts are required condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. MC(L.A. Appeal) No. 4 of 2022 P a g e | 17 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challan manner requires to be curbed, of course, within legal parameters."

22. In the judgment rendered in the case of Esha Bhattacharjee, supra, the Hon’ble Supreme Court has referred to some of the decisions rendered by Hon’ble Courts on the principles to be followed while adjudicating the issue of condonation of delay. For the sake of convenience, some of the judgments are extracted as follows: a) In Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, 1987 AI 1353, a MC(L.A. Appeal) No. 4 of 2022 P a g e | 18 two-Judge Bench observed that the legislature has conferred power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice, for that is the life- purpose for the existence of the institution of courts. The learned Judges emphasized on adoption of a liberal approach while dealing with the applications for condonation of delay as ordinarily a litigant does not stand to benefit by lodging an appeal late and refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. It was stressed that there should not be a pedantic approach but the doctrine that is to be kept in mind is that the matter has to be dealt with in a rational commonsense pragmatic manner and cause of substantial justice MC(L.A. Appeal) No. 4 of 2022 P a g e | 19 deserves to be preferred over technical considerations. It was also ruled that there is no presumption that delay is occasioned deliberately or on account of culpable negligence and that the courts are not supposed to legalise injustice on technical grounds as it is the duty of the court to remove injustice. In the said case the Division Bench observed that the State which represents the collective cause of the community does not deserve a litigant-non grata status and the courts are required to be informed with the spirit and philosophy of the provision in the course of interpretation of the expression “sufficient cause”. (b) In G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore (1988) 2 SCC 142, Venkatachaliah, J. (as his Lordship then was), speaking for the Court, has opined thus: “The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See : Ramlal, Motilal and Chhotelal v. Rewa MC(L.A. Appeal) No. 4 of 2022 P a g e | 20 Coalfield Ltd.(1962)(2 SCR 762); Shakuntala Devi Jain v. KuntalKumari(1969)(1 SCR 1006); Concord of India Insurance Co. Ltd. V. Nirmala Devi (1979) 3 SCR 694; Lala Mata Din v. A. Narayanan (1970) 2 SCR 90; Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression ‘sufficient cause’ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.”…. MC(L.A. Appeal) No. 4 of 2022 P a g e | 21 (c) In Improvement Trust, Ludhiana v. Ujagar Singh and others (2010) 6 SCC 786, it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves.”

23. The principles that emanate from the above said decisions are that, in the matter of condonation of delay in filing appeals beyond the limitation period, the Courts are empowered to condone the delay, provided the litigant is able to demonstrate that there was “sufficient cause” in preferring appeal beyond the limitation period. The Courts have also held that the expression “sufficient cause” should receive liberal construction so as to advance substantial justice. Hence, the question of condonation of delay is a factual matter and the result would depend upon the facts of the case and in the instant case the cause has been shown by the petitioners for the delay. Accordingly, this Court is MC(L.A. Appeal) No. 4 of 2022 P a g e | 22 of the view that the delay in filing the appeal is liable to be condoned.

24. In the result, M.C. (L.A. Appeal) No.4 of 2022 is allowed. There will be no order as to costs. JUDGE FR/NFR Sushil MC(L.A. Appeal) No. 4 of 2022